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New Administration Should Move Swiftly to Close Guantánamo

November 6, 2008

David H. Schanzer

President Bush said last year that “it should be a goal of the nation to shut down Guantánamo,” but it now appears this goal will be unfulfilled when he leaves office. His recent decision not to close the prison at Guantánamo Bay for aliens accused of being terrorists is regrettable.

Bush’s decision represents a victory for Vice President Dick Cheney, who, according to reports, believes that keeping the prison open under a new administration would “validate” Bush's detention policies. But there is no redeeming the detention and prosecution system at Guantánamo -- a system that has produced only two convictions in seven years, has been rebuked by the Supreme Court three times and has caused four military prosecutors to step down in disgust. Colin Powell has properly urged that this symbol of injustice be shut down “this afternoon.”

The next president will need different strategies for dealing with the three categories of detainees at Guantánamo:

• Where sufficient evidence exists that a detainee has committed a war crime, court-martial proceedings should begin immediately. Those charged under this system and ultimately convicted can be detained in military jails inside the United States. The military commission system has failed miserably and should be scrapped.

Use of the well-respected military justice system, on the other hand, will gain us greater international respect, reduce delay and eliminate the possibility of convictions being overturned due to constitutional defects in the military commissions.

• The second group consists of detainees who our military has determined present no danger, but have not been released because we cannot find a country that will take them. The new president will have to expend some diplomatic capital on convincing our allies to share the burden of closing Guantánamo by taking custody of these individuals. For this mission to succeed, however, we will need to avoid what happened earlier this month, when a State Department effort to place 17 Uighur detainees abroad was undercut by Justice Department statements that they are extremely dangerous.

• The third category of detainees presents the most difficult challenge –those the government believes are dangerous, but against whom there is insufficient admissible evidence to bring a prosecution. The Supreme Court has held that we may detain unlawful enemy combatants captured in battlefield circumstances under the law of war until hostilities have ended. The court’s most recent ruling, however, gives detainees the right to challenge their status as unlawful combatants in federal court.

The best way to get out of this legal hole is to transfer these detainees to their home countries, if we can be assured they will be kept in custody and treated humanely. Recent negotiations to transfer a large number of detainees to Yemen, for example, need to be brought to a speedy conclusion.

The remainder of the detainees should be transferred to high-security military facilities inside the United States. The government has resisted taking this step because bringing the detainees here may provide them additional rights when challenging their detentions in court and increase the possibility a judge could order detainees released here, as one judge recently did with respect to the Uighurs (a ruling that is currently being appealed).

These are low-level risks worth enduring to close the Guantánamo jail. The likelihood that Guantánamo detainees are going to be released into the United States is minimal. Even if a court rules that continued military detention is unlawful, the detainees have no right to be here. They can be placed in custody as illegal immigrants until we find a country to which to deport them. Congress has robust authority over immigration matters and will intervene if the courts attempt to release detainees into our civilian population.

Another obstacle to the transfer is opposition from members of Congress, who oppose placing dangerous terrorists in prisons in their districts. This demagoguery will simply have to be ignored. Our prisons hold mass murders and serial rapists -- surely they can be counted on to prevent the escape of the Guantánamo detainees as well.

This combination of prosecutions, diplomatic initiatives to move detainees abroad and transfer of detainees to the United States will not resolve all our legal difficulties. If we want to continue detaining alleged terrorists without charge for the duration of a conflict that has no clear end, new legislation will probably be required. But at least these steps will bring the Guantánamo debacle to an end.